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Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Aborting Protestors Suffer Legal Setback

We therefore maintain that the [abortion rights advocates] may maintain this lawsuit if the [protestors] conducted their enterprise through a pattern of racketeering activity. We hold that RICO contains no economic motive requirement. 

U.S. Supreme Court, 

National Organization for Women 

(NOW) v. Schiedler, et. al. (1994)

The U.S. Supreme Court held in January that abortion rights advocates may use a federal racketeering law to sue abortion protest groups that organize confrontations at abortion clinics across the nation. The case pitted the National Organization for Women (NOW) against a coalition of anti-abortion groups called the Pro-Life Action Network (PLAN), including Randall Terry’s Operation Rescue (OR).

NOW leaders hailed the ruling as a stunning victory against PLAN’s “nationwide campaign of terror” against abortion clinic employees. Randall Terry denounced the decision as a “vulgar betrayal of over 200 years of tolerance towards protest and civil disobedience.”

NOW had brought a civil suit in Chicago against PLAN for an injunction and damages under the Racketeer Influenced and Corrupt Organization (RICO) chapter of the federal Organized Crime Control Act. NOW alleged the abortion protestors fell within the scope of this anti-racketeering law because the protestors were allegedly members of a nationwide conspiracy characterized by a pattern of racketeering activity. This activity allegedly included threats of actual force and violence to induce clinic doctors and employees to give up their economic right to practice their profession.

The lower federal courts ruled in favor of PLAN and OR, holding that a RICO suit required the defendants’ enterprise to be directed toward some profit-making or economic goal. But NOW, aided by briefs filed by the Clinton administration, took the case up to the U.S. Supreme Court, arguing that RICO suits did not require proof of a profit-making goal by the defendant enterprise.

The Supreme Court agreed (see headline quote above) and accordingly NOW was permitted to proceed with its suit against PLAN and OR in Chicago. Of course, NOW will still have the burden of proving” a pattern of racketeering activity,” but proof of an “economic motive” will no longer be necessary in RICO suits.

Many constitutional scholars are concerned about this seemingly expansive application of RICO which was originally intended to target the Mafia and other organized crime figures. And since RICO contains a triple-damage provision, PLAN and. OR are now exposed to potentially devastating judgments which could bankrupt these organizations.

There is some indication that the Court this summer may clarify its views on the freedom of speech rights of peaceful abortion protestors. Meanwhile PLAN and OR will be forced to defend these RICO lawsuits in the future.

Church-State Test to be Reviewed

Constitutional scholars are eagerly awaiting the U.S. Supreme Court’s decision this summer in the case called Board of Education v. Grumet. This case has attracted nationwide attention because it involves the most hotly debated issue in church-state law – the use of public funds for the education of children in a religious setting.

The suit involves the village of Kiryas Joel, located 40 miles north of New York City. The small community is highly populated by Satmar Hasidim, a strict Jewish sect that educates their children in private schools, segregating the boys from the girls and speaking Yiddish more than English. These schools, however, do not have resources for special education programs for disabled children.

The Hasidic parents historically sent their disabled children to a nearby public school system, but complained that these children were “traumatized” by attending schools outside their community. The public school officials, however, refused to accede to their request to set up a special school at the site in the Hasidic village. In an attempt to resolve the standoff, the New York legislature created a special public school district (consisting of one small building) to provide special education exclusively for the disabled Hasidic children.

But in 1990, some officers for a state public school board association brought suit, contending the special school district for 200 Hasidic disabled children violated the non-establishment clause of the First Amendment. The New York courts all held the school was unconstitutional, stating that it had the “primary effect” of advancing religion since it acceded to “the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious practices.”

But the Hasidic school officials plan to argue to the Supreme Court that their special education school “has, at most, the affect of accommodating the needs of a community of devoutly religious people.” They also will argue, strangely enough, that the educational program at the challenged school is secular and non-religious, and that none of the teachers are Hasidic Jews.

For the last 20 years, the Court has looked to the Lemon test (from the 1971 decision in the case of Lemon v. Kurtzman) to resolve Establishment Clause (“Congress shall pass no laws respecting an establishment of religion….”) cases. Under the Lemon test, government action passes constitutional muster only if it has (1) a sectarian purpose, (2) a primary effect that neither advances nor inhibits religion; and (3) does not foster excessive government entanglement with religion.

Many of the justices have indicated they may be anxious to jettison the Lemon test in favor of a new “coercion” test or a “government endorsement” standard. If so, this school case could be a landmark decision in this controversial area of church-state law where even the Supreme Court justices are often bitterly at odds.

This case also bears watching because a possible re-tooling of Establishment Clause jurisprudence could have profound impact on the constitutionality of parental tuition vouchers proposals that are currently being considered by a number of state legislatures.

Clergy Convicted for Failure to Report Child Abuse

A California appellate court recently upheld, the criminal convictions of a senior pastor and an associate pastor who were convicted by a jury for failing to report a case of child molestation to state agency authorities. All states now have such child abuse reporting laws. Many of these laws require even ministers to report instances of child abuse to state child protective agencies.

In this case, the senior pastor was the president, and the associate pastor the principal, of a private school operated by the church. The church and the school shared buildings and facilities. A 17-year-old high school senior was referred to the senior pastor after she reported to her teacher that she was being molested by her stepfather. After the pastor confronted him with the allegations, the stepfather confessed. The senior pastor later presented the girl with a letter of apology from her stepfather and told her that he had been sent to a “retreat” for counseling. The stepfather was also required to confess his sin in front of the entire congregation.

The pastor then urged the girl to return home with her parents. The girl reluctantly did so, but soon after graduation ran away from home and reported the incidents to local law enforcement. The state authorities not only prosecuted the stepfather – they filed a criminal suit against the pastors for failing to report the case to a state agency. California law provides that “any child care custodian . . . shall report a known or suspected instance of child abuse to a child protective agency immediately . . . .”

The pastors appealed their convictions, arguing that the law violated the First Amendment guarantee of religious freedom to “handle problems within the church” using biblical principles of discipline. They also argued that application of the child abuse reporting law to pastors constituted forbidden excessive state entanglement with religion.

The California court disagreed. Upholding the pastors’ conviction, the court held: “The state may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest. There is no indication teachers and administrators of religious schools would voluntarily report known or suspected child abuse. The protection of all children cannot be achieved in any other way.”

Accordingly, it is becoming increasingly clear that whenever a minister (or school teacher, for that matter) is aware of or suspects child abuse (defined as physical, sexual, or emotional abuse or neglect of a child under 18 inflicted by a parent or guardian), he should consult with a local attorney to determine whether state law requires him to report the abuse to local authorities, regardless of whether church discipline has been initiated.